United States District Court, E.D. Virginia, Norfolk Division
LISA M. CLANTON, Plaintiff,
CITY OF VIRGINIA BEACH, Defendant,
MARK S. DAVIS, District Judge.
This matter is before the Court on a motion to dismiss, ECF No. 4, filed on January 28, 2015 by the City of Virginia Beach ("the City" or "Defendant"). In such motion, the City contends that the Court must dismiss Lisa M. Clanton's ("Plaintiff") Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) because Plaintiff has failed to exhaust her administrative remedies. After examining the briefs and the record, the Court determines that oral argument is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the decisional process. Fed.R.Civ.P. 78(b); E.D. Va. Loc. R. 7(J).
I. FACTUAL AND PROCEDURAL HISTORY
The City, a municipality within the Commonwealth of Virginia, operates a Department of Public Works that is "responsible for managing programs and resources to enhance the health, safety, and welfare of the residents, businesses, and visitors of the City." Compl. ¶ 6, ECF No. 1 (internal quotation marks omitted). The City's Department of Public Works employs roughly 850 individuals and operates a number of divisions, including the Division of Building Maintenance. Id.
Plaintiff, a Chesapeake, Virginia, resident, is a former employee of the City who worked as a "Custodian I" for the City's Department of Public Works Building Maintenance Division. Id . ¶ 5. In such capacity, "[s]he was responsible for performing routine housekeeping duties in various City owned buildings." Id . As a Custodian I, she reported to a "crew leader, " who, in turn, reported to a "custodial supervisor." Id.
Plaintiff alleges that Rudy Diaz ("Diaz"), a crew leader for the Department of Public Works, sexually harassed her beginning in February 2012. Id . ¶¶ 3, 10, 16. According to Plaintiff, prior to harassing Plaintiff, Diaz had harassed "at least five different custodians who reported to him as their crew leader" between 2009 and 2012; however, the City did not "take remedial measures against Mr. Diaz sufficient to deter him from engaging in future sexual harassment...." Id . ¶ 13. Following two alleged incidents of sexual harassment by Diaz, Plaintiff contacted Shelby Goldsmith ("Goldsmith"), an analyst in the City's Human Resource Department, and anonymously complained of Diaz's behavior. Id . ¶ 19. According to Plaintiff, Goldsmith "advised [Plaintiff] that her allegations were merely [her] word against his' and that her complaint would therefore be difficult to prove." Id . Plaintiff alleges that Goldsmith's advice discouraged her from filing a formal complaint with the City and that the City, despite knowledge of the allegations against Diaz based on Plaintiff's anonymous complaint, failed to investigate such allegations because it had no policy to handle anonymous complaints. Id . ¶ 20.
Subsequent to the February 2012 instances, Plaintiff alleges that Diaz again sexually harassed her three times in August 2012. Id . ¶ 21. Plaintiff alleges that she did not report the first two August 2012 instances in which Diaz allegedly sexually harassed Plaintiff because no one other than herself and Diaz witnessed the harassment and, therefore, Goldsmith's earlier statements regarding her likelihood of success on a "her word against his" claim dissuaded her from filing a formal complaint. Id . ¶¶ 21-22.
Plaintiff alleges that Diaz sexually harassed her a third time on August 13, 2014. Following the incident, Plaintiff informed a coworker, Sheila Saunders ("Saunders"), of the harassment. Id . ¶ 24. Saunders informed Plaintiff that Diaz had harassed her in a similar manner and indicated that she would support Plaintiff if she filed a complaint with Human Resources. Id . Plaintiff then called Goldsmith and, again choosing to remain anonymous, informed her of the incident. Id . ¶ 25. Goldsmith remembered Plaintiff's earlier anonymous complaints about Diaz and persuaded Plaintiff to submit to an interview at the Human Resources office. Id . Goldsmith then interviewed Plaintiff at such office and Plaintiff reported to Goldsmith most of Diaz's conduct. Id . During the interview, Plaintiff requested a leave of absence, but Goldsmith denied her request because Plaintiff did not have any personal leave available. Id . Goldsmith did, however, assure Plaintiff that she would not encounter Diaz again. Id.
After the interview with Plaintiff, Goldsmith initiated an investigation into Plaintiff's allegations. Id . ¶ 27. According to Plaintiff, pursuant to Human Resource Department policy, the City would not provide Plaintiff with "any information throughout the course of its investigation, other than that [Diaz] was still employed by the City." Id . ¶ 28. Plaintiff alleges that this "kept her in a state of anxiety as to when he might show up to her workplace." Id . The City terminated Diaz approximately six months after the investigation began. Id.
Regarding the City's knowledge of Diaz's conduct, Plaintiff alleges that the City "had a heightened duty to take steps to prevent Diaz's misconduct" because he "wielded substantial authority to direct and supervise the custodians subordinate to him, including [Plaintiff]." Id . ¶ 32. Furthermore, Plaintiff alleges that the City "knew or should have known that Diaz maintained a hostile work environment based on sex" because of multiple complaints by Diaz's subordinates that he sexually harassed them. Id . ¶ 33. Plaintiff alleges that the City is liable for Diaz's harassing misconduct because it: negligently permitted his harassment to occur by failing to act on complaints about Diaz's harassment; negligently permitted the August 2012 assaults on Plaintiff when Goldsmith discouraged Plaintiff to file a formal complaint; and failed to have a policy to handle anonymous complaints of sexual harassment. Id.
On April 9, 2013, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Pl.'s Opp'n to Mot. to Dismiss Ex. 1 ("EEOC Charge"), ECF No. 6-1. In its entirety, the charge states:
My employment began with the Respondent on September 26, 2010, as a Custodian I and I presently hold this position. From February 1, 2012, through August 14, 2012, I was sexually harassed by my [c]rew leader through unwelcome touching of my breasts, stalking, staring, a passion bite on the cheek and a kiss on the lips. I reported the sexual harassment to [S]helby Goldsmith, the Human Resources representative on August 13, 2012. I had made an anonymous complaint to Ms. Goldsmith during March 2012 or April 2012. She asked if there were any witnesses both times. She told me that it would be hard to prove if there was no witness because it would be my word against his word. The sexual harassment continued after I complained in August 2012. Other females have also been sexually harassed by the [c]rew leader.
The Respondent maintains a Sexual Harassment policy. After I complained the Respondent conducted an investigation but I was not informed of the outcome nor was I given any compensatory relief for the sexual harassment. Respondent has acknowledged that there were other females who were sexually harassed by the crew leader.
I believe I was sexually harassed and subjected to a hostile work environment in violation [of] Title VII of the Civil Rights Act of 1964, as amended, and in violation of the Virginia Human Rights Act, VA ...